Hello Street Law Advocates,
After the first federal Trump indictment, there has been some confusion on what exactly a federal indictment means in relation to a state indictment. Generally, these two are very similar. In order to charge an individual with a felony offense punishable by imprisonment for a year or more, or a death sentence, the government needs to 1) indict you, or 2) charge you through an information.[i] An indictment is held once a month, and the government must prove that there is probable cause to support an arrest for the offense in order for a grand jury to issue an indictment.[ii] A grand jury must have between 16 and 23 members. An indictment is issued only if a minimum of 12 of those members agree that an indictment is appropriate.[iii] In this case, this means that the special investigator was able to prove to at least 12 of the grand jurors that the federal government has probable cause to charge Trump with a violation of 18 U.S.C. § 793(e), which covers willful retention of national defense information, in addition to a separate violation of 18 U.S.C. § 1512(k), which covers conspiracy to obstruct justice and other charged criminal violations.
A federal indictment, however, is more daunting of a challenge to defeat than the New York state indictment. According to New York’s 2020 Criminal Justice Statistical Report, approximately 30% of felony indictments result in prison sentences, and approximately 67% of felony indictments result in convictions.[iv] In contrast, fewer than 1% of defendants facing a federal charge went to trial and won their case, and 90% pled guilty prior to trial. [v] With this framework and history in mind, it would appear Trump faces insurmountable odds in escaping his trial without a felony conviction either through trial or plea deal.
Keep on the lookout for a follow up post discussing why Trump was able to escape pre-trial detainment after his arraignment.
[i] Fed. R. Crim. P. 6
[ii] United States v, Sells Eng’g, 463 U.S. 418, 423 (1983).
[iii] Fed. R. Crim. P. 7
[iv] New York State Division of Criminal Justice Services, Criminal Justice Statistical Report for New York: Criminal Justice Case Processing Arrest through Disposition New York State January – December 2020 (2021). https://www.criminaljustice.ny.gov/crimnet/ojsa/dar/DAR-4Q-2020-NewYorkState.pdf
[v] John Gramlich, Only 2% of federal criminal defendants go to trial, and most who do are found guilty, Pew Research Center (June 11, 2019), https://www.pewresearch.org/short-reads/2019/06/11/only-2-of-federal-criminal-defendants-go-to-trial-and-most-who-do-are-found-guilty/
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